Retail Theft and Concealment

If I never left the store, how can I be charged with Retail Theft in Pennsylvania?

A common misconception, even among seasons criminal defense lawyers, is that an individual must “pass the point of sale” to be convicted of retail theft. This idea is false and Pennsylvania’s retail theft statute allows the government to prosecute you even if you never left the store.

The retail theft criminal statute in Pennsylvania is primarily governed by 18 Pa.C.S. § 3929, which defines various actions that constitute retail theft and outlines the penalties for such offenses. A careful look at the crimes code punishing retail theft reveals that there are essentially five (5) ways that the government can attempt to prosecute you for retail theft:

First, “taking possession of” any merchandise displayed/offered for sale by any store or other establishment with the intent of depriving the merchant of possession without paying full retail value. Second, altering or changing any label/price marking and attempting to purchase that merchandise without paying full retail value. Third, transferring items from containers or removing items from containers/boxes with the intent to deprive the store of full retail value. Fourth, “under ringing” items with the intention of depriving the store of full retail value. Finally, destroying any control tag or security strip with the intention of depriving the merchant of full retail value.

Notice that you are not required to pass the point of sale or leave the store to be prosecuted for retail theft. Concealment is addressed in subsection (c) of the code, specifically that any person intentionally concealing unpurchased property shall be presumed to have concealed the property with the intention of depriving the store of the property. So, if you stick a piece of merchandise in your pocket, the government can presume that you are stealing it.

Pennsylvania is extremely harsh on retail theft offenders, particularly those who commit multiple retail theft offenses. The crime of retail theft is a misdemeanor if the value of the merchandise exceeds $150.00 or is a 2nd offense. It is a felony if the item/good is over $1,000.00, a firearm, a motor vehicle, or a 3rd or subsequent offense.

Importantly, the Commonwealth does not need to produce the actual merchandise that was stolen to prosecute you. Furthermore, loss prevention officers working for a retailer can and have the legal ability to detain you for a reasonable period of time, to investigate the retail theft, if they have probable cause to believe that you committed retail theft. The detention must be “reasonable,” however.

There are also other statutes which address retail thefts, such as organized retail theft – which is essentially is a group of individuals getting together to commit multiple different retail thefts (typically across a wide area). There are special statutes which prosecute library/museum theft.

Lastly, for the purposes of this article, 42 Pa.C.S. § 8308 allows for civil penalties against those people who are convicted or accused of retail thefts. This allows merchants to pursue civil action against retail theft offenders, and demand payment of money to reimburse the costs of prosecuting and policing their stores. These penalties can include: value of the merchandise plus $150.00, actual damages, and/or attorney’s fees and costs.